NYT dumps a copyright snowfall on startup referencing its work

"If you wouldn’t mind using another publication to advertise your infringement tool..."

Last year The New York Times unleashed its vision of digitally native storytelling with "Snow Fall." The piece broke away from standard newsprint-transplanted-to-Web design, offering interactive graphics, videos, and other multimedia integrated into an overall narrative. It wasn't necessarily earth-shattering, but it demonstrated a cool concept for others to aspire to.

The push to move beyond common content templates is precisely what drives the tiny startup Scroll Kit. According to a blog post by founder Cody Brown, the company works "to help publishers break from their templates and craft powerful digital stories" by streamlining this process. So Brown saw "Snow Fall" as an opportunity to demonstrate the capabilities of Scroll Kit. "Instead of tweeting about how awesome 'Snow Fall' was," he said, "I wanted to do something that would show its admirers that they can do it too—I made a replica. It took about an hour to put together, and I recorded a video of the process."

Nice homage, right? Not quite. According to the cease-and-desist letter Brown later received from NYT, the video is actually a nice example of copyright infringement. NYT requested that Brown remove the demo from YouTube, the Scroll Kit site, and other social media avenues within three days. Despite considering the video acceptable under fair use, Brown didn't want to fight the NYT legal team and he complied (setting the video to private).

Brown notified the paper of his actions and, to his surprise, he received another letter. NYT didn't deem his actions acceptable. Furthermore, they now wanted all mentions of "The New York Times" removed from the Scroll Kit website. On its front page, Scroll Kit says that "[t]he NYT spent hundreds of hours hand-coding 'Snow Fall'" before touting its streamlining.

As of this writing, Scroll Kit's site is still making its claim citing the NYT. Brown responded to the last letter from the Times by e-mailing the identified lawyer for more information about why Scroll Kit was infringing. He received a third and final letter from a different member of the NYT legal team, one that's too good not to include in full:

Dear Mr. Brown:

We are offended by the fact that you are promoting your tool, as a way to quickly replicate copyright-protected content owned by The New York Times Company. It also seems strange to me that you would defend your right to boast about how quickly you were able to commit copyright infringement:

The NYT spent hundreds of hours hand-coding “Snow Fall.” We made a replica in an hour.

If you wouldn’t mind using another publication to advertise your infringement tool, we’d appreciate it.

As techdirt noted, there was a strong fair use argument to be made with the initial letter. With the second letter, it's odd for NYT to request that a factual statement be removed just because it references the paper. The wordings in this third letter—"infringement tool"—are an entirely different (and condescending) matter. But this isn't the first time The New York Times has flexed its legal muscles in an unclear instance. Just last year, the paper approached the Twitter parody account @NYTOnIt for how the handle used the infamous "T" from its signature font.

Of /course/ not the whole company. I'm sure there's some good people there! However, you can't honestly defend /these/ people. And stuff like this by association harms the reputation of the NYT as a whole. That's how reputation works, and on the internet, it works fast.

As techdirt noted, there was a strong fair use argument to be made with the initial letter.

The sum total of techdirt's argument as to why the marketing video was protected under fair use consists of one sentence:

"Nothing in what Scroll Kit did with the video competed with the Snow Fall story in any way shape or form."

That, imo, is not a strong fair use argument. Far from it. (It touches on the last of the four factors in determining fair use. That, by itself, is not enough to justify calling it "a strong fair use argument.")

That last letter was just absurd, but the first letter seemed wholly justified.

You really think a website that prominently says "The NYT spent hundreds of hours hand-coding “Snow Fall.” We made a replica in an hour." is a nice homage?

That sounds like trivializing the effort that went into the original to me.

I think the nature of homage has changed greatly with the internet. Take this music box for example. It was most likely trivial to set up, and not the legally safest choice. Do you think this trivializes the effort of Koji Kondo in developing not only great music, but great music within the limitations of NES sound capabilities? It was a tremendous effort for a mainstream news organization to take such a bold step in regards to presentation. For a smaller entity working specifically on helping to automate these kinds of things, showing that it can be done quickly with a presentation already in mind is much less work.

If he's trivializing anything, it's the hand coding methods of this rich content. However, that is something he didn't duplicate here.

What is the problem here? Guy copies NYT IP including a video on how to do so. They ask him to take it down. Then he only sets it to private so they ask that mentions of NYT which he is using not as pull quotes or similar fair use but instead to sell his product and they ask him to take it down. I am not seeing the problem or this cats fair use.

Even if he considers himself a direct competitor to the NYT, he is not prohibited from making factual claims that mention a competitor. The NYT's lawyers don't seem to realize that. They also don't seem to recognize other fair use issues, so they are given less credibility.

What is the problem here? Guy copies NYT IP including a video on how to do so. They ask him to take it down. Then he only sets it to private so they ask that mentions of NYT which he is using not as pull quotes or similar fair use but instead to sell his product and they ask him to take it down. I am not seeing the problem or this cats fair use.

No, guy builds startup using his own tools to create multimedia stories that allow users to interact, and attempts to sell those to people in order to help them make modern digital news. New York Times spends millions to do the same. Guy promotes his (already existing) tools by saying "hey, they did it this way. We can do the same work in an hour. You should use our product and make your own content".

You can't copyright a "type" of story. NYT made a product using their vast resources. This guy made a product that allows similar type of story to be made in a drastically shorter timeframe. To showcase the speed with which his tool is able to create that type of story, he made a replica of the NYT feature, and showed a how-to video. The purpose of it isn't to copy the NYT feature, the purpose is to show others what's possible with his tool. If he distributed the actual story, using NYT's content, that's infringement. He didn't he showed a video of how to make a product like theirs.

And you know what? I bet a lot of smaller venues looking for a digital hook are going to be ringing this guy up so they can create NYT-type content without their vast resources.

So, lemme get this straight. Are the NYT people claiming that the concept of a multimedia system like theirs is actually their copyrighted material, and that no one else can legally build a replica of it? That building a working replica of their GUI using a different technology violates their copyright? oO

So, lemme get this straight. Are the NYT people claiming that the concept of a multimedia system like theirs is actually their copyrighted material, and that no one else can legally build a replica of it? That building a working replica of their GUI using a different technology violates their copyright? oO

The original cease & desist letter is a little unclear (and the later ones simply ridiculous), but design work can most certainly be copyrighted.

I'm far from an expert on US copyright law, but my understanding is that the technical implementation cannot be copyrighted (that would come under patent law, which is a whole new kettle of fish), but the creative design most certainly is. It's fine to take inspiration from the design work of others, but outright copying is definitely not okay.

Sometimes I despair of of the soul-crushing literalism and willful hyperbole which people often engage in on the web, in defiance of the moderation and common sense interpretation of clear intent which would naturally occur in real-world conversations. I then wonder if arrogant douchery will take over real life as it has digital life.

And then I turn on the news and realize the process is already well underway. Thanks for building a better society guys, one where we assume the obvious intent of our conversation partner and respond to his actual message with dialogue instead of just talking past him in scripted disagreement. Not.

Are the NYT people claiming that the concept of a multimedia system like theirs is actually their copyrighted material, and that no one else can legally build a replica of it? That building a working replica of their GUI using a different technology violates their copyright? oO

So, lemme get this straight. Are the NYT people claiming that the concept of a multimedia system like theirs is actually their copyrighted material, and that no one else can legally build a replica of it? That building a working replica of their GUI using a different technology violates their copyright? oO

The original cease & desist letter is a little unclear (and the later ones simply ridiculous), but design work can most certainly be copyrighted.

I'm far from an expert on US copyright law, but my understanding is that the technical implementation cannot be copyrighted (that would come under patent law, which is a whole new kettle of fish), but the creative design most certainly is. It's fine to take inspiration from the design work of others, but outright copying is definitely not okay.

I am graphic designer and i can tell you for a fact I cant copyright my design work. Nor can the NY Times.

My business can trade mark it's logo, I can copyright my words on a blog about my design firm, but i cannnot copyright a design of a book cover or my business card or a web page layout.

Why?

Congress sees graphic design as industrial trade in same class as being a black smith or a wood worker as graphic design roots are printing and that it is not a form of expression that is similar to painting, poetry, or writing.

A design of a layout of a website is fundamentally no different than a layout for a newspaper.

Sometimes I despair of of the soul-crushing literalism and willful hyperbole which people often engage in on the web, in defiance of the moderation and common sense interpretation of clear intent which would naturally occur in real-world conversations. I then wonder if arrogant douchery will take over real life as it has digital life.

Similarly, I often despair of the soul-crushing letter-of-the-law interpretation and willful ignorance which people engage in with regards to copyright law.

Take the present case, for instance. A guy developing a software product to streamline a certain type of media production picks an example of this type of media and proceeds to demonstrate "this is how my software could have been used to produce this more efficiently". Clearly he had no intention whatsoever of abetting piracy via unauthorized distribution of NYT's content, and it's quite illogical to believe that NYT was suffering any significant 'theft' of their content via his little demonstration. More likely, they came up with some twisted idea that the artistic value of their work was somehow being degraded by the demonstration, despite the fact the he wasn't attacking the content itself, and, indeed, might have been indirectly praising it. Or perhaps they just wanted to legally strong-arm him (as big companies seem to like to do these days) because they could. And then we get the copyright maximalists on Ars Technica supporting the NYT as if they're in the right.

Are the NYT people claiming that the concept of a multimedia system like theirs is actually their copyrighted material, and that no one else can legally build a replica of it? That building a working replica of their GUI using a different technology violates their copyright? oO

That's copyright infringement, pure and simple (regardless of what this story's author or techdirt asserts).

If he had used different or dummy text and pictures, there should have been no problem, imo.

So far as I understand it, unless he's actually marketing his services as an alternative to the NYT as a news source, with the intention of giving people a go-to place to get all the same news from, then it's not infringement. Since he's using only just enough of "their content" to create a proof-of-concept look-alike to their system -- say, a few kilobytes of material -- then, yeah, this is very clearly fair use.

That's copyright infringement, pure and simple (regardless of what this story's author or techdirt asserts).

If he had used different or dummy text and pictures, there should have been no problem, imo.

Actually, you can under certain circumstances. He is not without a decent fair use argument on his side. It's not a slam dunk, and he doesn't have the money to defend himself, but if he did, it could go either way. It's also very difficult to make a clear judgment since the video is no longer available. For that purpose, there's actually a decent legal argument for bringing it back for the sake of appropriate public commentary and critique.

What amuses me is that I was able to click through to the ScrollKit site, click "try", and make little doodles and such on the page with very little effort. It worked fine.

I then clicked in the NYT SnowFall site and was presented with a header on top and a few pages of scrolling whitespace. I'm not terribly locked down with Chrome - no 3rd party cookies, flashblock, and ghostery. Disabling the latter two and reloading still gave me the same result. Made me giggle a bit... "hand coded". Mmmm... Artisanal Web Design - the Times is ON IT.

So far as I understand it, unless he's actually marketing his services as an alternative to the NYT as a news source, with the intention of giving people a go-to place to get all the same news from, then it's not infringement. Since he's using only just enough of "their content" to create a proof-of-concept look-alike to their system -- say, a few kilobytes of material -- then, yeah, this is very clearly fair use.

Aside from deliberately constructed hypos and situations that directly parallel famous cases, there is little that is "very clearly fair use". The doctrine is almost willfully obtuse.

If I had spend hundreds of hours coding something and then someone came along and boasted about how easy it was to replicate I'd be a little pissed too.

Damn straight man. After spending several years coding a video game from scratch in assembly, this guy on a discussion board showed me how I could have done it in a month using a high level language. What an asshole! Don't worry though, I fired off a DMCA takedown targeting his post.

That's copyright infringement, pure and simple (regardless of what this story's author or techdirt asserts).

If he had used different or dummy text and pictures, there should have been no problem, imo.

Actually, you can under certain circumstances. He is not without a decent fair use argument on his side. It's not a slam dunk, and he doesn't have the money to defend himself, but if he did, it could go either way. It's also very difficult to make a clear judgment since the video is no longer available. For that purpose, there's actually a decent legal argument for bringing it back for the sake of appropriate public commentary and critique.

Is there possibility, now that he has some publicity coming of this lunacy, of him getting a bunch of donations, perhaps something kickstarter style, to put into a warchest to fight this in the court?

That's copyright infringement, pure and simple (regardless of what this story's author or techdirt asserts).

If it's that pure and simple, then maybe you should be able to summon up a more complex legal argument than "Nuh-uh!"

Somebody else has already linked the four criteria for fair use, upthread. Now, as you say, the "purpose and character" criterion is a strike against Brown, as his use was commercial in nature. But as Brown mentioned, the "effect on the potential market" clause works in his favor -- because the effect of his video on the potential market for the New York Times article falls somewhere between "fuck" and "all".

As for the nature of the copyrighted work: I think that one's another strike against Brown; he wasn't repeating the news in the story, he was specifically pointing to the multimedia sugar that came with it.

That leaves the amount and substantiality of the portion of the article he used in the video. And what that even means.

He clearly didn't use any of the backend code from the article. Does that count toward "amount and subsantiality"? Or would a court only consider images and text? Did he use any text? I don't know; I haven't seen the video. Because somebody told him to take it down. Did he use more material than was necessary to demonstrate his product? Again, I don't know.

It's easy to wave your hands and use dismissive phrases like "pure and simple". But law seldom is.

I've seen enough seemingly clear-cut cases go another way that I don't take judges' or juries' rulings for granted. I can see an argument either way for why a court would rule in favor of Brown or the NYT if this had gone to trial.

But I'm pretty damn comfortable in saying how a court would rule on the New York Times telling Brown he can't use their name on his website.

If I had spend hundreds of hours coding something and then someone came along and boasted about how easy it was to replicate I'd be a little pissed too.

Damn straight man. After spending several years coding a video game from scratch in assembly, this guy on a discussion board showed me how I could have done it in a month using a high level language. What an asshole! Don't worry though, I fired off a DMCA takedown targeting his post.

Not only did he he show you how, he copied your entire game in doing so. Then he used that copy to promote his product.

You can't likely target his post for takedown, but you can take action against any materials he is distributing which includes unauthorized copies of your game.